[Federal Register Volume 89, Number 110 (Thursday, June 6, 2024)]
[Proposed Rules]
[Pages 48339-48348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12396]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 89, No. 110 / Thursday, June 6, 2024 / 
Proposed Rules  

[[Page 48339]]



DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

8 CFR Part 106

[Docket No. USCBP-2024-0009]
RIN 1651-AB48


9-11 Response and Biometric Entry-Exit Fee for H-1B and L-1 Visas

AGENCY: U.S. Customs and Border Protection, Department of Homeland 
Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) proposes to amend 
and clarify the regulations concerning the 9-11 Response & Biometric 
Entry-Exit Fee for H-1B and L-1 Visas (9-11 Biometric Fee). The 
proposed regulatory changes would clarify DHS's interpretation of 
ambiguous statutory language to require that covered employers submit 
the 9-11 Biometric Fee for all extension-of-stay petitions, regardless 
of whether a Fraud Fee applies, so as to include extension-of-stay 
petitions that do not involve a change of employer. The 9-11 Biometric 
Fee would continue to apply unchanged to petitions seeking an initial 
grant of status. The proposed changes will also help DHS comply with 
its congressional mandate to implement a biometric entry-exit data 
system.

DATES: Comments must be received by July 8, 2024.

ADDRESSES: Please submit comments, identified by docket number, by the 
following method:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2023-XXXX.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Larry Panetta, Office of Field 
Operations, U.S. Customs and Border Protection, by phone at 202-344-
1253 or email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
notice of proposed rulemaking. The Department of Homeland Security 
(DHS) and U.S. Customs and Border Protection (CBP) also invite comments 
that relate to the economic, environmental, or federalism effects that 
might result from this proposal.
    Comments that will provide the most assistance to DHS and CBP in 
developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change. Comments should be submitted through the Federal eRulemaking 
Portal.

II. Background

A. Statutory Authorization and History

1. Initial Supplemental H-1B and L-1 Fee
    H-1B and L-1 classifications are temporary nonimmigrant worker 
classifications. H-1B and L-1 classifications are authorized under 
sections 101(a)(15)(H)(i)(b) and (L), respectively, of the Immigration 
and Nationality Act (INA), as amended (8 U.S.C. 1101(a)(15)(H)(i)(b), 
(L)). H-1B status is a nonimmigrant classification for noncitizens who 
work in certain specialty services or occupations. L-1 status allows 
companies to seek a temporary intracompany transfer of certain 
noncitizen employees who perform executive or managerial functions or 
have specialized knowledge.\1\
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    \1\ For more information on H-1B nonimmigrant classification, 
see U.S. Citizenship and Immigration Services (USCIS), H-1B 
Specialty Occupations, DOD Cooperative Research and Development 
Project Workers, and Fashion Models, https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations. For more 
information on L-1 nonimmigrant classification, see USCIS, L-1A 
Intracompany Transferee Executive or Manager, https://www.uscis.gov/working-in-the-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager; and USCIS, L-1B Intracompany 
Transferee Specialized Knowledge, https://www.uscis.gov/working-in-the-united-states/temporary-workers/l-1b-intracompany-transferee-specialized-knowledge.
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    In 2010, Congress established a supplemental fee for certain 
employers petitioning for beneficiaries to obtain H-1B or L-1 status 
(2010 Supplemental Fee). See section 402 of the Act of August 13, 2010, 
Public Law 111-230, 124 Stat. 2485, 2487 (Pub. L. 111-230) (8 U.S.C. 
1101 note). The 2010 Supplemental Fee applied to employers that employ 
50 or more employees in the United States with more than 50 percent of 
the employees in the United States in H-1B or L-1 nonimmigrant status 
(covered employers). Sec. 402, Public Law 111-230. The statute required 
covered employers to pay an increase to ``the filing fee and fraud 
prevention and detection fee'' in the amount of $2,000 or $2,250 for H-
1B or L-1 petitions, respectively. Sec. 402, Public Law 111-230.
    The statutory language in Public Law 111-230 required covered 
employers to pay the 2010 Supplemental Fee at the time that a fraud 
detection and prevention fee (Fraud Fee) is collected. Sec. 402, Public 
Law 111-230. The $500 Fraud Fee is established under separate statutory 
authority. See sec. 426(a) of the H-1B Visa Reform Act of 2004, Public 
Law 108-447, 118 Stat. 2809, 3357 (the 2004 H-1B Visa Reform Act) (8 
U.S.C. 1184(c)(12)(A), section 214(c)(12)(A) of the INA). Pursuant to 
section 426(b) of the 2004 H-1B Visa Reform Act, the Department of 
State, in collaboration with DHS and the Department of Labor, uses 
Fraud Fee collections to combat fraud in immigration processes. 8 
U.S.C. 1356(v)(2), section 286(v)(2) of the INA. With limited 
exceptions, the statute requires employers to pay the Fraud Fee when 
petitioning for an initial grant of H-1B or L-1 nonimmigrant status or 
for change of employer petitions for beneficiaries already in H-1B or 
L-1

[[Page 48340]]

status. See sec. 426(a) of the 2004 H-1B Visa Reform Act.
    Although Public Law 111-230 could reasonably be considered as 
ambiguous because, among other things, it was not clear whether the 
increased fee applied once per covered petition or twice, that is, as 
an increase to the petition fee and separately as an increase to the 
Fraud Fee, DHS interpreted the 2010 Supplemental Fee to apply only once 
per covered petition and only when the Fraud Fee applied. Accordingly, 
DHS implemented regulations applying the 2010 Supplemental Fee to 
petitions subject to the Fraud Fee seeking initial grants of H-1B or L-
1 status and change of employer petitions for beneficiaries already in 
H-1B or L-1 status, consistent with applicability of the Fraud Fee. See 
76 FR 53764, 53768, 53781. The 2010 Supplemental Fee sunset on 
September 30, 2015, after an extension by Congress.\2\
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    \2\ See sec. 402, Public Law 111-230, (establishing the initial 
sunset date for the 2010 Supplemental Fee as September 30, 2014), as 
amended by sec. 302 of the James Zadroga 9/11 Health and 
Compensation Act of 2010, Public Law 111-347, 124 Stat. 3623, 3667 
(extending the sunset date to September 30, 2015).
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2. 9-11 Response and Biometric Entry-Exit Fee
    On December 18, 2015, Congress established the ``9-11 Response and 
Biometric Entry-Exit Fee'' for certain H-1B and L-1 petitions (9-11 
Biometric Fee). See Consolidated Appropriations Act, 2016, Div. O, sec. 
402(g), Public Law 114-113, 129 Stat. 2242, 3006 (Pub. L. 114-113) (49 
U.S.C. 40101 note).\3\ Public Law 114-113 instated the 9-11 Biometric 
Fee after the 2010 Supplemental Fee expired. The amount of the 2010 
Supplemental Fee was doubled for the 9-11 Biometric Fee to be $4,000 
and $4,500 for H-1B and L-1 petitions, respectively. Id. At the same 
time, Congress also established the 9-11 Response and Biometric Exit 
Account (9-11 Biometric Account), into which 50 percent of the funds 
from the 9-11 Biometric Fee collections are deposited, up to $1 
billion. Id. DHS may use the funds available in the 9-11 Biometric 
Account to implement the biometric entry and exit data system required 
by section 7208 of the Intelligence Reform and Terrorism Prevention Act 
of 2004, Public Law 108-458, 118 Stat. 3638, 3817 (IRTPA), (8 U.S.C. 
1365b). Sec. 402(g), Public Law 114-113. Section 7208 of the IRTPA (8 
U.S.C. 1365b), adopting recommendations by the National Commission on 
Terrorist Attacks Upon the United States (also known as the 9/11 
Commission), requires DHS to implement a biometric entry-exit system 
that uses biometric data to confirm the identity of travelers entering 
and exiting the United States. As the DHS component responsible for 
controlling the border and monitoring the arrival and departure of U.S. 
citizens and noncitizens, CBP implements biometric operations in the 
land, sea, and air environments.\4\ Pursuant to congressional 
extension, the 9-11 Biometric Fee is currently set to expire on 
September 30, 2027.\5\
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    \3\ The 9-11 Biometric Fee is a fee related to petitions for H-
1B and L-1 classification and is discussed in those terms in this 
proposed rulemaking. Although not all those seeking H-1B and L-1 
classification are required to obtain a visa, the headings in the 
statute refer to temporary fee increases for H-1B and L-1 visas, and 
consequently the headings in the implementing regulations refer to 
fees for H-1B and L-1 visas. Accordingly, the subject heading of 
this document and the proposed regulatory headings also refer to 
fees for H-1B and L-1 visas.
    \4\ See sec. 411 of the Homeland Security Act of 2002, as 
amended by sec. 802 of the Trade Facilitation and Trade Enforcement 
Act of 2015, Public Law 114-125, 130 Stat. 122, 199 (HSA) (6 U.S.C. 
211); secs. 215.8 and 235.1 of title 8 of the Code of Federal 
Regulations (8 CFR 215.8 and 235.1).
    \5\ See sec. 402(g), Public Law 114-113 (establishing the 
initial sunset date for the 9-11 Biometric Fee as September 30, 
2025), as amended by sec. 30203(b) of the Bipartisan Budget Act of 
2018, Public Law 115-123, 132 Stat. 64, 126 (extending this date to 
September 30, 2027).
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    The statutory language establishing the 9-11 Biometric Fee is 
similar to that of Public Law 111-230. However, Public Law 114-113 has 
two important distinctions, beyond the increased fee amounts. First, 
Congress added the word ``combined,'' thereby resolving a potential 
ambiguity that existed in Public Law 111-230 and clarifying that the 
fee increase served as a single fee increase rather than as separate 
fee increases to both the filing fee and the Fraud Fee. Sec. 402(g), 
Public Law 114-113. Second, with respect to the types of petitions for 
which the fees must be submitted, Congress inserted the phrase 
``including an application for an extension of such status.'' Id. This 
addition clarified that the 9-11 Biometric Fee is required for both 
petitions seeking an initial grant of status and extension-of-stay 
petitions.

B. Prior DHS Rulemaking Addressing the 9-11 Biometric Fee

    Although the statutory changes discussed above clarified some of 
the ambiguous language in Public Law 111-230, the new legislation, 
Public Law 114-113, could still be reasonably considered ambiguous 
concerning the issue of whether covered employers filing extension-of-
stay petitions must pay the 9-11 Biometric Fee for all extension 
petitions or only those involving a change in employer. At the time 
that the 9-11 Biometric Fee was established in 2015, DHS interpreted 
the new language in Public Law 114-113 consistent with its prior 
interpretation; that is, the 9-11 Biometric Fee only applies when the 
Fraud Fee also applies. Accordingly, DHS implemented regulations in a 
final rule published on October 24, 2016 (2016 Fee Rule) that set forth 
its interpretation. See 81 FR 73292.
    In the years following the 2016 Fee Rule, DHS monitored the 
collection of the 9-11 Biometric Fee and evaluated other permissible 
interpretations of the ambiguous statutory language in Public Law 114-
113. After careful consideration, on November 14, 2019, DHS proposed an 
interpretation expanding the circumstances in which the 9-11 Biometric 
Fee would apply (2019 Fee NPRM), as well as proposing numerous other 
changes related to fees collected by DHS. 84 FR 62280. DHS received 
several comments on the 2019 Fee NPRM opposing the proposed 9-11 
Biometric Fee. After considering the comments, on August 3, 2020, DHS 
adopted the 9-11 Biometric Fee interpretation that would require the 
additional fee for all H-1B or L-1 extension of stay petitions filed by 
covered employers, among other changes, in a Final Rule (2020 Fee 
Rule). See 85 FR 46788. For additional information on the comments and 
DHS' responses, see the 2020 Fee rule at 85 FR 46866. However, before 
the 2020 Fee Rule could go into effect, it was enjoined in its entirety 
during the course of litigation unrelated to the 9-11 Biometric Fee.\6\ 
Accordingly, DHS never changed its collection practices regarding the 
9-11 Biometric Fee and currently collects the 9-11 Biometric Fee only 
for petitions filed by covered employers seeking initial grants of H-1B 
or L-1 status or change of employer petitions filed by covered 
employers for beneficiaries already in H-1B or L-1 status, including 
change of employer petitions requesting an extension of

[[Page 48341]]

such status, but not for other extension of stay requests.\7\
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    \6\ See Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 
(N.D. Cal. Sept. 29, 2020) (granting plaintiffs' motion to enjoin 
the 2020 Fee Rule in its entirety by finding plaintiffs met initial 
burden to show then-Acting Secretary of DHS Chad Wolf lacked 
authority to approve the 2020 Fee Rule and further that the 2020 Fee 
Rule violated procedural and substantive requirements under the 
Administrative Procedure Act in adopting certain asylum- and 
naturalization-related new fees, fee increases, and fee waiver 
reductions); see also Nw. Immigrant Rts. Project v. U.S. Citizenship 
& Immigr. Servs., 496 F. Supp. 3d 31 (D.D.C. Oct. 8, 2020) (granting 
plaintiffs' motion for preliminary injunction challenging the fee 
increases, new fees, and fee waiver reductions adopted in the 2020 
Fee Rule on similar grounds).
    \7\ Although the 2020 Fee Rule was enjoined prior to its 
effective date, the regulatory language at 8 CFR 106.2(c)(8)-(9) was 
revised in 2020 to reflect the changes adopted in the 2020 Fee Rule. 
85 FR 46788. On January 31, 2024, DHS published a final rule 
replacing the language at 8 CFR 106.2(c)(8)-(9) with the pre-2020 
Fee Rule version of the regulations in order to align the 
regulations with DHS practice in light of the injunction on the 2020 
Fee Rule (2024 Final Rule). 89 FR 6194. In the 2024 Final Rule, DHS 
noted that the 9-11 Biometric Fee may be the subject of a future 
rulemaking. Id at 6240.
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III. Purpose of 9-11 Biometric Fee and Need for Rulemaking

A. The Purpose of the 9-11 Biometric Fee

    In Public Law 114-113, Congress expressly intended for the 9-11 
Biometric Fee to fund the biometric entry and exit programs it mandated 
earlier in order to improve security, combat visa and travel document 
fraud, and protect our country against terrorism. As discussed above, 
Congress enacted the IRTPA in 2004 and implemented recommendations made 
by the 9/11 Commission. See Tit. VII of the IRTPA. Section 7208 of the 
IRTPA (8 U.S.C. 1365b) requires DHS to implement a biometric entry and 
exit data system. Congress expressed in the IRTPA that a biometric 
entry-exit data system is ``an essential investment in efforts to 
protect the United States by preventing the entry of terrorists.'' Sec. 
7208(a) of the IRTPA (8 U.S.C. 1365b(a)). Moreover, the IRTPA 
explicitly highlights certain goals for DHS and the biometric entry-
exit system in addition to serving as a vital counterterrorism 
mechanism, which include efficiently screening travelers, integrating 
and modifying relevant databases to address increased volume and usage, 
and improving database search capacities. Sec. 7208(h) of the IRTPA (8 
U.S.C. 1365b(h)).
    In 2015, Congress established the 9-11 Biometric Account for the 
purpose of funding the biometric entry-exit system that Congress 
mandated in the IRTPA. Sec. 402(g), Public Law 114-113. Congress also 
implemented the 9-11 Biometric Fee, which replaced and doubled the 
expired 2010 Supplemental Fee, in order to fund the 9-11 Biometric 
Account and, by extension, DHS's biometric entry-exit data system. DHS 
believes the interpretation of Public Law 114-113 proposed in this 
rulemaking would better align the regulations with legislative intent 
and better enable DHS to meet its congressional mandates.
    CBP is the primary DHS component responsible for implementing an 
integrated, automated entry-exit system that matches the biographic 
data and biometric information of noncitizens entering and departing 
the United States at land, sea, and air points of entry. See sec. 
411(c)(10) of the HSA (6 U.S.C. 211(c)(10)); sec. 7208 of the IRTPA (8 
U.S.C. 1365b). Pursuant to CBP's mission to control the border and 
regulate the arrival and departure of both U.S. citizens and 
noncitizens, CBP has the authority to confirm the identity of all 
travelers and verify that the travelers are the authorized bearers of 
their travel documents. See sec. 411 of the HSA (6 U.S.C. 211); and 8 
CFR 235.1. An integrated biometric entry-exit system has provided the 
most accurate way to verify an individual's identity. By operating 
these systems, CBP can therefore improve security and effectively 
combat attempts by terrorists who use false travel documents to 
circumvent border checkpoints. Further, biometrically verifying that a 
person who presents a travel document is the true bearer of that 
document helps to prevent visa and immigration fraud and the fraudulent 
use of legitimate travel documentation.
    The funding that DHS receives from the 9-11 Biometric Account 
supports critical biometric entry-exit operations in the land, sea, and 
air entry environments that are ongoing and must be sustained in order 
to continue their use.\8\ Specifically, the 9-11 Biometric Account 
buttresses the development, operations, and maintenance of the Traveler 
Verification Service (TVS).\9\ TVS is the facial comparison matching 
service that serves as the backbone of CBP's biometric entry-exit data 
system.\10\ TVS effectively and efficiently matches passengers to the 
travel documents they present to CBP.\11\ Maintaining TVS enables CBP 
to continue preserving the United States' crucial health, operational, 
and national security interests.\12\
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    \8\ Section 402(g) of Public Law 114-113 provides that DHS may 
draw from the 9-11 Biometric Account to implement the biometric 
entry-exit data system as required by Congress. DHS directs these 
funds to CBP because CBP is the agency ultimately responsible for 
implementing the biometric entry-exit data system. See secs. 
411(c)(10), (g)(3) of the HSA (6 U.S.C. 211(c)(10), (g)(3)); sec. 
7208 of the IRTPA (8 U.S.C. 1365b).
    \9\ See CBP, DHS/CBP/PIA-056, Privacy Impact Assessment for the 
Traveler Verification Service 1 (Nov. 14, 2018), https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf.
    \10\ See CBP, DHS/CBP/PIA-056, Privacy Impact Assessment for the 
Traveler Verification Service 4 (Nov. 14, 2018), https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf. See id. at 4.
    \11\ See id. at 6; CBP, Traveler Verification Service for 
Simplified Travel (2018), https://www.cbp.gov/sites/default/files/assets/documents/2018-Aug/Traveler_Verification_Service_For_Simplified_Travel3.pdf.
    \12\ See CBP, DHS/CBP/PIA-056, Privacy Impact Assessment for the 
Traveler Verification Service 16 (Nov. 14, 2018), https://www.dhs.gov/sites/default/files/publications/privacy-pia-cbp056-tvs-february2021.pdf.
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    DHS's biometric entry-exit data system also directly and positively 
affects the travel industry by restoring consumer confidence in travel 
safety. Using biometric technology, air and sea partners can facilitate 
check-in, security, and boarding processes that historically involved 
long lines, heavy personal interaction, and frequent handling of travel 
documents. The implementation of biometric technology, namely facial 
comparison, in all travel environments encourages contactless travel 
that involves minimal physical contact, which is more efficient and 
increases the safety of travelers, CBP officers, and port personnel.
    In addition to streamlining travel and restoring consumer 
confidence, the use of facial biometric matching protects the identity 
of travelers and provides another layer of security. TVS reduces the 
number of times that travelers must show their travel documents, which 
contain personally identifiable information, to government and carrier 
personnel throughout both entry and exit processes. The use of facial 
biometric matching has also proven to be an effective tool in 
combatting the use of stolen and fraudulent travel and identity 
documents. Since the program's inception in 2018, CBP officers at U.S. 
airports have successfully intercepted 77 impostors who were denied 
admission to the United States and identified 1,806 imposters on 
arrival in the land pedestrian environment. Further, since June 2017 
through December 5, 2023, DHS has confirmed over 304,004 overstays 
through the use of facial biometric matching at exit.\13\
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    \13\ Imposter and overstay numbers are tracked internally by CBP 
and not published publicly. This information is based on information 
provided by CBP's Office of Field Operations via email on September 
12, 2023. Partial overstay numbers are reported in DHS's Entry/Exit 
Overstay Reports, available at https://www.dhs.gov/publication/entryexit-overstay-report.
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    DHS's current biometric entry-exit operations have proven 
successful in enhancing national security and public safety.\14\ 
Ultimately, lack of adequate funding poses a dire threat to DHS's 
mission, CBP officers, and public safety. Without the proposed 
regulatory changes to the collection of the 9-11 Biometrics Fee, DHS 
cannot maintain its current biometric entry operations or continue 
implementing other essential

[[Page 48342]]

entry and exit programs. Failure to maintain or continue implementing 
DHS's biometric entry and exit operations increases risks to security 
vulnerabilities, interoperability and data management issues, cyber 
resilience in the event of a cyberattack from criminal hackers, system 
availability and reliability, and system scalability to meet the 
demands of travel partners. The 9-11 Biometric Fee is essential to 
funding these biometric entry-exit programs, and the regulations 
proposed will directly support DHS's fulfilment of its congressional 
mandates.
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    \14\ For more information on CBP's biometrics program, please 
visit CBP's website at https://biometrics.cbp.gov.
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B. Need for Rulemaking

    DHS must interpret ambiguous statutory language to implement the 
responsibilities that Congress has assigned to the agency. The language 
in Public Law 114-113 establishing the 9-11 Biometric Fee is ambiguous 
regarding the fee's applicability to extension-of-stay petitions. DHS 
must therefore resolve the statutory ambiguity to determine whether the 
9-11 Biometric Fee applies to all extension-of-stay petitions by 
covered employers.\15\ As discussed above, Public Law 114-113 
established the 9-11 Biometric Fee by again enacting and doubling the 
2010 Supplemental Fee to be $4,000 for H-1B petitions and $4,500 for L-
1 petitions. Congress also added new phrasing in two pertinent places 
that guided the Department's proposed interpretation: ``. . . the 
combined filing fee and [Fraud Fee] required to be submitted with an 
application for admission [as an H-1B or L nonimmigrant], including an 
application for an extension of such status, shall be increased.'' Sec. 
402(g), Public Law 114-113 (emphasis added).
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    \15\ ``Covered employers'' are those employers with more than 50 
employees in the United States and where more than 50 percent of the 
employees in the United States are in H-1B or L-1 nonimmigrant 
status. Sec. 420(g), Public Law 114-113.
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    Previously, DHS had to determine whether the 9-11 Biometric Fee 
applies to all extension petitions by covered employers or just those 
for which the Fraud Fee is also charged (change of employer petitions 
for a beneficiary already in H-1B or L-1 status, including a change of 
employer petition that requests an extension of such status). In 2016, 
DHS interpreted the 9-11 Biometric Fee to apply only when the Fraud Fee 
also applied. 81 FR 73292. In 2019, DHS considered that applying the 9-
11 Biometric Fee to all extension petitions would be a significant new 
substantive expansion of the 9-11 Biometric Fee compared to the 
interpretation that DHS adopted from 2010-2015 for the 2010 
Supplemental Fee. At that time, DHS considered the latter reading would 
be consistent with the scope of the 2010 Supplemental Fee (although in 
the higher amounts provided by Pub. L. 114-113). See 2019 Fee NRPM, 84 
FR 62280, 62322.
    The construction of the statutory ambiguity in Public Law 114-113 
that DHS adopted in 2016 was not, however, the only reasonable one. 
Another reasonable interpretation of that statute is that the 9-11 
Biometric Fee applies to all extension of stay petitions even when the 
Fraud Fee is not applicable. Under this alternative interpretation of 
Public Law 114-113, the language ``including an application for an 
extension of such status'' is a substantive amendment, and the 
insertion of the word ``combined'' is a clarifying one. It is plausible 
that Congress added the reference to extension of status so that the 9-
11 Biometric Fee would be collected for all extension of stay 
petitions, not just those where a change of employer is also requested. 
Under this interpretation, the insertion of the word ``combined'' can 
be viewed as a clarifying edit that the increase to the fee is applied 
only once per petition and not once for the filing fee and once for the 
Fraud Fee such that it might apply two times for some petitions. In 
that case, a covered employer would pay the filing fee plus the Fraud 
Fee plus the applicable 9-11 Biometric Fee ($4,000 for H-1B petitions 
or $4,500 for L-1 petitions). When the Fraud Fee does not apply, the 
``combined filing fee and [Fraud Fee]'' is simply the filing fee plus 
$0, such that covered employers would pay the filing fee + $0 for the 
Fraud Fee + the applicable 9-11 Biometric Fee. This interpretation 
would give meaning to all of Congress's alterations to the earlier 
statute.
    Following the passage of Public Law 114-113, DHS considered 
alternative interpretations of the ambiguous language, but ultimately 
decided, at that time, to maintain its earlier interpretation, that the 
9-11 Biometric Fee applies only when the Fraud Fee applies. DHS 
internally noted that alternative interpretations were also reasonable 
but chose to maintain the status quo for that time while internally 
reviewing alternative interpretations. See 2019 Fee NRPM, 84 FR 62280, 
62322. DHS has reexamined this matter and believes that its alternative 
interpretation of Public Law 114-113, proposed here, is more consistent 
with the goal of the statute to ensure employers that employ a 
substantial number of H-1B or L-1 nonimmigrant workers pay an 
additional fee by making the 9-11 Biometric Fee applicable to all 
petitions by covered employers, regardless of whether or not the Fraud 
Fee also applies. In other words, the 9-11 Biometric Fee should apply 
to all H-1B or L-1 petitions filed by covered employers seeking initial 
classification of a beneficiary as an H-1B or L-1 nonimmigrant or an 
extension of stay for those already in such status, irrespective 
whether the extension of stay request is for a change of covered 
employers or for the purpose of remaining employed with the original 
covered employer.
    In addition to putting forth a permissible interpretation of Public 
Law 114-113, DHS is also affirming that the interpretation in this 
rulemaking more closely aligns with Congress's objective to require an 
additional fee for covered employers, who by definition rely on H-1B 
and L-1 nonimmigrants for 50 percent of their workforce.\16\ 
Accordingly, a reasonable interpretation of Public Law 114-113 is that 
Congress intended for covered employers to pay the 9-11 Biometric Fee 
even when the beneficiaries remain with the same employer. Without this 
proposed change, covered employers can avoid paying the 9-11 Biometric 
Fee while employing a substantial number of H-1B and L-1 nonimmigrants 
as long as the beneficiary remains employed by the same covered 
employer.\17\ The ability of these petitioners to avoid paying the 9-11 
fee entirely in some cases would appear to be against the Congressional 
intent in establishing these fees. From fiscal year 2018 to fiscal year 
2022, 29 percent of all H-1B petitions were subject to the 9-11 
Biometric Fee. Had this rule been in effect for that same time period, 
the percentage of H-1B petitions that would have been subject to the 9-
11 Biometric Fee would have been 84 percent of all H-1B petitions.\18\
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    \16\ See USCIS, Fee Increase for Certain H-1B and L-1 Petitions 
(Pub. L. 114-113), https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/fee-increase-for-certain-h-1b-and-l-1-petitions-public-law-114-113.
    \17\ Individual L-1 petitions (Form I-129S) filed on the basis 
of a previously approved ``blanket L'' petition are currently 
subject to the Fraud Fee and, by extension, the 9-11 Biometric Fee. 
USCIS already considers this a change of employer, even if the 
petitioner is covered under the same ``blanket L'' approval as the 
previous petitioner. Therefore, the proposed changes will not alter 
current USCIS practice in this regard.
    \18\ Due to limitations in available data, similar calculations 
are not available for L-1 petitions.
---------------------------------------------------------------------------

    Significantly, a delay in this additional funding will continue to 
jeopardize CBP's ability to meet its congressional mandate to enhance 
national security by deploying a fully integrated biometric entry-exit 
data

[[Page 48343]]

system. Without additional funding, CBP will be unable to maintain its 
current biometric entry operations, as well as ensure that TVS 
continues to be available to CBP and external stakeholders. CBP will 
also be unable to expand biometric confirmation to additional sea and 
land modalities at points of entry to the United States and fully 
implement a comprehensive biometric exit system at all land, sea, and 
air exits.\19\
---------------------------------------------------------------------------

    \19\ Since 2004, DHS has worked to develop and implement a 
comprehensive biometric entry and exit data system as required by 
section 7208 of the IRTPA. See, e.g., Implementation of the United 
States Visitor and Immigrant Status Indicator Technology Program 
(``US-VISIT''); Biometric Requirements, 69 FR 468 (Jan. 5, 2004). 
Additional resources discussing DHS's plans to enhance biometric 
operations are DHS's annual Entry/Exit Overstay Reports, available 
at https://www.dhs.gov/publication/entryexit-overstay-report.
---------------------------------------------------------------------------

    Actual collections have fallen short of both anticipated 
collections and what is necessary to maintain and expand biometric 
operations. In December 2015, the Congressional Budget Office (CBO) 
published a report on the fee provisions in Public Law 114-113 and 
estimated annual revenues of $420 million per year (except for $380 
million in the first year of FY 2016) from the 9-11 Biometric Fee 
through its lifespan.\20\ Pursuant to the statute, 50 percent of those 
annual total collections--or an estimated $210 million per year--would 
be deposited into the 9-11 Biometric Account and made available to DHS 
and CBP, up to $1 billion. However, actual collections pre-COVID-19 
repeatedly fell well below CBO's estimates: $158 million in FY 2016, 
$125 million in FY 2017, $119 million in FY 2018, and $118 million in 
FY 2019.\21\ Notwithstanding the impact of COVID-19 on collections 
during FYs 2020-21,\22\ DHS believes that collections have fallen short 
of CBO projections primarily because the current statutory 
interpretation fails to apply the 9-11 Biometric Fee to all extension 
petitions regardless of whether there is a change of employer. Both the 
previous interpretation and the current interpretation of Public Law 
114-113 are reasonable based on the wording in the statute; therefore, 
DHS is proposing to amend the regulations to better align with its 
Congressional mandate to implement a fully integrated biometric entry-
exit system.
---------------------------------------------------------------------------

    \20\ See Congressional Budget Office, Cost Estimate on H.R. 
2029, Amendment #1 (2016 Omnibus) Table 3 (Dec. 16, 2015), https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/hr2029amendment1divisionsa.pdf.
    \21\ FY 2018-2021 data are based on data provided by USCIS via 
email between 11/30/2021 and 12/21/2021.
    \22\ FY 2018-2021 data are based on data provided by USCIS via 
email between 11/30/2021 and 12/21/2021. The collection totals for 
FYs 2020 and 2021 were $72 million and $57 million, respectively. 
DHS recognizes the impact COVID-19 had on collection totals during 
this time frame but emphasizes that collection totals fell short of 
estimated collections prior to the COVID-19 pandemic.
---------------------------------------------------------------------------

IV. Proposed Changes to Regulations

A. Proposed Amendment to Collection of 9-11 Biometric Fees

    DHS proposes to amend the regulations at 8 CFR 106.2(c)(8) and (9) 
to specify that the 9-11 Biometric Fee will apply to all H-1B and L-1 
extension-of-stay petitions in addition to all previously covered H-1B 
and L-1 petitions.\23\ Accordingly, DHS proposes to replace the phrase 
``certain petitioners'' with ``all petitioners'' in the subparagraphs 
concerning both H-1B and L-1 petitioners. This proposed change will 
allow DHS to charge all covered petitioners the 9-11 Biometric Fee, 
including those seeking extension petitions that do not involve a 
change of employer, as opposed to only those petitioners whose 
petitions are also subject to the Fraud Fee.
---------------------------------------------------------------------------

    \23\ As stated previously, 8 CFR part 106 and the other 
regulatory changes in the 2020 Fee Rule have been codified although 
DHS is enjoined from implementing or enforcing them and is still 
charging the fees as set forth in 8 CFR 103.7(b)(1) as they existed 
prior to the 2020 Fee Rule. DHS is proposing in this rule to replace 
the enjoined provisions at 8 CFR 106.2(c)(7) and (8) pertaining to 
the 9-11 Biometric Fees. The 9-11 Biometric Fee provisions are 
proposed at 8 CFR 106.2(c)(8) and (9) in the 2023 Fee NPRM, and so 
are proposed as such here.
---------------------------------------------------------------------------

B. Proposed Clarifying Amendments

    DHS also proposes certain clarifying amendments. First, DHS 
proposes to insert the phrase ``except for petitioners filing an 
amended petition without an extension of stay request.'' Amended 
petitions are filed to notify USCIS of a material change in the terms 
or conditions of employment or the beneficiary's eligibility as 
specified in the original approved petition. See USCIS, Form I-129, 
Instructions for Petition for Nonimmigrant Worker, https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf. Under 
the proposed regulations, covered petitioners filing an H-1B or L-1 
amended petition that does not include an extension of stay request 
would not be required to submit the 9-11 Biometric Fee.
    DHS further proposes to clarify the method by which it determines 
whether a petitioner is a covered employer. Currently, DHS counts all 
full-time and part-time employees who hold H-1B or L-1 status in order 
to determine whether an employer meets the definition of ``covered 
employer'' by reaching the 50 percent threshold. DHS requires the 9-11 
Biometric Fee once the threshold is met to be considered a covered 
employer. DHS proposes adding the words ``in the aggregate'' to both 
provisions in 8 CFR 106.2(c)(8) and (9) to clarify its current 
practice.

V. Statutory and Regulatory Reviews

A. Executive Orders 12866, 14094, and 13563

    Executive Order 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory Review), and Executive 
Order 13563 (Improving Regulation and Regulatory Review) direct 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility.
    The Office of Management and Budget (OMB) has not designated this 
proposed rule a significant regulatory action under section 3(f) of 
Executive Order 12866, as amended by Executive Order 14094. 
Accordingly, OMB has not reviewed this proposed rule.
    As a result of this rule, DHS expects H-1B and L-1 transfer 
payments from fee payers to the U.S. Government to increase by a 
combined total of $157.3 million annually. This will ensure that 
covered employers \24\ would have to pay the 9-11 Biometric Fee as well 
as increase funds to implement and maintain CBP's biometrics programs. 
Public Law 114-113 exempts employers that do not employ 50 or more 
employees with more than 50 percent of employees under H-1B and/or L-1 
status from the 9-11 Biometric Fee.
---------------------------------------------------------------------------

    \24\ ``Covered employers'' are those employers with more than 50 
employees in the United States and where more than 50 percent of the 
employees in the United States are in H-1B or L-1 nonimmigrant 
status. Sec. 402(g), Public Law 114-113.
---------------------------------------------------------------------------

1. Purpose of the Rule
    In 2020, after evaluating alternative interpretations of Public Law 
114-113, DHS adopted the 2020 Fee Rule, which made the 9-11 Biometric 
Fee applicable to all petitions by covered employers, except for 
amended petitions without an extension of stay request, regardless of 
whether the Fraud Fee also applies. DHS believes that Congress's intent 
with the 9-11 Biometric Fee was twofold. First, to ensure that covered 
employers

[[Page 48344]]

would generally have to pay an additional fee of $4,000 or $4,500 for 
H-1B or L-1 petitions, respectively. Second, to fund congressionally 
mandated biometric entry and exit programs that protect against 
terrorism. However, the interpretation that DHS adopted in the 2020 Fee 
Rule never went into effect because the 2020 Fee Rule was enjoined in 
its entirety during litigation unrelated to the 9-11 Biometric Fee. DHS 
maintains that the interpretation adopted in the 2020 Fee Rule is most 
consistent with the statute's goals. Therefore, DHS is proposing to 
adopt regulations that better align with Congress's intent for Public 
Law 114-113. The proposed change would expand the instances in which 
the 9-11 Biometric Fee applies by applying the 9-11 Biometric Fee to 
all H-1B or L-1 petitions seeking initial grants of status or an 
extension of stay, regardless of whether the Fraud Fee applies. By 
implementing this alternative interpretation of ambiguous language in 
Public Law 114-113, DHS is effectuating Congressional intent because 
the increased collections will provide necessary funds for the 
implementation and maintenance of biometric entry and exit data systems 
as required by Congress under section 7208 of the IRTPA.
    CBP is responsible for implementing an integrated and automated 
entry-exit system that matches biographic data and biometrics of 
noncitizens entering and departing the United States. CBP currently 
relies on the 9-11 Biometric Fee to fund several processes and programs 
such as TVS, which benefit the public by increasing consumer confidence 
in travel safety and speeding up the boarding process while encouraging 
contactless travel. CBP's use of biometrics has also proven to be 
effective in combatting the use of stolen and fraudulently presented 
travel and identity documents. The 9-11 Biometric Fee funds biometrics 
programs that also benefit other government agencies by providing 
assurance that the travelers arriving match their travel documents.
2. Transfer Payments From Rule
    Fees paid to government agencies for goods and services provided by 
the agency are considered transfer payments because they are monetary 
payments from payers to the government and do not affect the total 
resources available to society. Costs associated with the provision of 
these goods and services are considered government costs of the 
regulation. Therefore, in this regulatory impact analysis, DHS 
discusses the additional transfer payments that H-1B and L-1 
petitioners will experience as a result of this rule in qualitative, 
and when possible, quantitative, and monetized terms. This analysis 
evaluates the impact on transfer payments for H-1B petitions and L-1 
petitions separately due to the differences in fee amounts and the data 
available. The period of analysis is for fiscal years (FY) 2023-2027. 
CBP bases its estimates on data from FY 2018-2022 due to data 
limitations.\25\
---------------------------------------------------------------------------

    \25\ See sec. 402(g), Public Law 114-113 (establishing the 
initial sunset date for the 9-11 Biometric Fee as September 30, 
2025), as amended by sec. 30203(b) of the Bipartisan Budget Act of 
2018, Public Law 115-123, 132 Stat. 64, 126 (extending this date to 
September 30, 2027.)
---------------------------------------------------------------------------

    Currently, of the H-1B and L-1 petitions submitted by covered 
employers, only those requesting new employment or a change of employer 
are required to pay the 9-11 Biometric Fee. This rule will increase 
transfer payments from H-1B and L-1 petitioners by also applying the 9-
11 Biometric Fee to H-1B and L-1 extension-of-stay petitions filed by 
covered employers.
    The H-1B submissions currently subject to the 9-11 Biometric Fee 
and the resulting transfer payments are shown in Table 1.\26\ Projected 
annual submissions are an average of submissions from FY 2018-2022. 
Multiplying the projected submissions by the fee amount of $4,000 
provides the projected annual transfer payments in the baseline. 
Transfer payments shown in Table 1 are not a result of this rule and 
are not added to those in Table 2 when totaling the additional transfer 
payments as a result of this rule; these fee payments are already 
occurring in the baseline. The values of Table 1 and Table 2 can be 
added together for an estimate of the total petitions subject to the 9-
11 Biometric Fee and the transfer payments for covered H-1B employers 
under this rule.
---------------------------------------------------------------------------

    \26\ FY 2018-2021 data are based on data provided by USCIS via 
email between 11/30/2021 and 12/21/2021 and FY 2022 data was 
provided by USCIS via email between 3/17/23 and 5/8/23.

                         Table 1--Baseline Annual H-1B Submissions and Transfer Payments
----------------------------------------------------------------------------------------------------------------
                                                                                                 Total actual &
                                    A--New       E--Change of        Total                          projected
          Fiscal year             employment       employer       submissions     Fee amount        transfer
                                                                                                    payments
----------------------------------------------------------------------------------------------------------------
2018..........................          16,511           7,016          23,527          $4,000       $93,907,000
2019..........................          17,669           5,878          23,547           4,000        93,924,000
2020..........................          10,149           4,616          14,765           4,000        58,692,000
2021..........................           8,583           4,431          13,014           4,000        51,860,500
2022..........................           6,715           3,925          10,640           4,000        43,664,000
2023..........................          11,926           5,174          17,100           4,000        68,400,000
2024..........................          11,926           5,174          17,100           4,000        68,400,000
2025..........................          11,926           5,174          17,100           4,000        68,400,000
2026..........................          11,926           5,174          17,100           4,000        68,400,000
2027..........................          11,926           5,174          17,100           4,000        68,400,000
----------------------------------------------------------------------------------------------------------------
 Fee requirements are not changing for these categories under this rule.
 Projected submissions for 2023-2027 are based on the average of submissions for 2018-2022 rounded up.
 Total Actual Transfer Payments differ from expected values based on calculations (Total Submissions x
  Fee Amount) due to differences in the timing of filings and when collections take place.

    Table 2 shows the number of additional annual H-1B submissions to 
which the 9-11 Biometric Fee would apply upon the implementation of 
this rule. As done in Table 1, the projected submissions for FY 2023-
2027 are an average of the FY 2018-2022 submissions and multiplying the 
projected submissions by the $4,000 fee provides the projected annual 
transfer payments that would result if this rule is finalized as 
proposed.

[[Page 48345]]



                                                  Table 2--Annual H-1B Submissions Newly Subject to Fee
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        B--Continuation
                                         of previously     C--Change in       D--New                                                      Total actual &
             Fiscal year                    approved        previously      concurrent      F--Amended         Total        Fee amount       projected
                                           employment        approved       employment       petition       submissions                      transfer
                                         without change     employment                                                                       payments
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018.................................             20,925           7,403               9          16,705          45,042              $0              $0
2019.................................             27,127           7,362              24           9,127          43,640               0               0
2020.................................             21,337           7,373              27          13,708          42,445               0               0
2021.................................              7,826           2,667             105           8,727          19,325               0               0
2022.................................              4,440           2,479             144           4,314          11,377               0               0
2023.................................             16,331           5,457              62          10,517          32,367           4,000     129,468,000
2024.................................             16,331           5,457              62          10,517          32,367           4,000     129,468,000
2025.................................             16,331           5,457              62          10,517          32,367           4,000     129,468,000
2026.................................             16,331           5,457              62          10,517          32,367           4,000     129,468,000
2027.................................             16,331           5,457              62          10,517          32,367           4,000     129,468,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
 The categories listed in this table are based on options for question 2 in part 2 of Form I-129.
 The 9-11 Biometric Fee is only applicable to petitions in these categories which also include an extension of stay request and do not reflect
  the total number of petitions received.
 The 9-11 Biometric Fee was not required for submissions pursuant to the categories listed this table for 2018-2022.
 Projected submissions for 2023-2027 are based on the average of submissions for 2018-2022 rounded up.

    The numbers of H-1B petitions shown in Table 1 are based on 
petitioners' responses to Form I-129 Part 2, Questions 2 and 4, 
indicating the purpose of the request was New Employment or a Change of 
Employer. DHS assumes that petitioners newly required to pay the 9-11 
Biometric Fee as a result of this rule will continue participating in 
the H-1B and L-1 programs at their current rate because this is a known 
fee and an expected cost of participation in the program. Similar 
information collected in L Classification Supplement Items 4.a and 4.b 
is not preserved in USCIS's administrative data. Consequently, DHS 
estimates the number of L-1 petitions with 50 or more employees and 
more than 50 percent of employees in H-1B/L-1 status that are currently 
subject to the fee by dividing the L-1 collections deposited in the CBP 
and Treasury accounts by the $4,500 fee amount, as shown in Table 3. 
Due to the lack of data regarding L Classification Supplement Items 4.a 
and 4.b, DHS estimated the projected submissions that will be subject 
to the fee as a result of this proposed rule by calculating the ratio 
of H-1B submissions newly subject to the fee to the H-1B submissions 
currently subject to the fee for FY 2018-2022. This multiplier (1.8929) 
was then applied to the number of projected L-1 submissions subject to 
the fee to find the projected L-1 submissions newly subject to the fee 
as a result of this rule and is shown in Table 3. This methodology 
assumes that the ratio of new fee payers to baseline fee payers is the 
same for L-1 and H-1B. To the extent it differs, the transfers will be 
higher or lower than projected. We request comment on this assumption.

                                                     Table 3--Annual L-1 Submissions Subject to Fee
                                                                    [Current and new]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Calculated &                                                                      Projected
                                             projected       Projected                                       Actual &        transfer     Total actual &
               Fiscal year                  submissions     submissions        Total        Fee amount       projected       payments        projected
                                             currently     newly subject    submissions                      transfer     resulting from     transfer
                                          subject to fee      to fee                                         payments          rule          payments
--------------------------------------------------------------------------------------------------------------------------------------------------------
2018....................................           5,586               0           5,586          $4,500     $25,137,000              $0     $25,137,000
2019....................................           5,411               0           5,411           4,500      24,349,046               0      24,349,046
2020....................................           2,935               0           2,935           4,500      13,207,954               0      13,207,954
2021....................................           1,082               0           1,082           4,500       4,869,499               0       4,869,499
2022....................................           1,314               0           1,314           4,500       5,912,000               0       5,912,000
2023....................................           3,266           6,183           9,449           4,500      14,697,000      27,823,500      42,520,500
2024....................................           3,266           6,183           9,449           4,500      14,697,000      27,823,500      42,520,500
2025....................................           3,266           6,183           9,449           4,500      14,697,000      27,823,500      42,520,500
2026....................................           3,266           6,183           9,449           4,500      14,697,000      27,823,500      42,520,500
2027....................................           3,266           6,183           9,449           4,500      14,697,000      27,823,500      42,520,500
--------------------------------------------------------------------------------------------------------------------------------------------------------
 L-1 submissions were calculated by dividing the actual transfer payments by the fee amount for FY 2018-2022.
 The 9-11 Biometric Fee is only applicable to petitions which also include an extension of stay request and do not reflect the total number of
  petitions received.
 Projected submissions currently subject to fee for 2023-2027 are based on the average of submissions for 2018-2022.
 Projected L-1 submissions newly subject to fee are calculated using the ratio of H-1B submissions newly subject to fee to H-1B submissions
  currently subject to fee from 2018-2022 (a multiplier of 1.8929).

    In undiscounted 2022 dollars, DHS believes this rule will result in 
a combined total increase of $157.3 million annually to H-1B and L-1 
transfer payments. Table 4 provides estimates of the undiscounted 
transfer payments and Table 5 provides estimates of the discounted 
transfer payments of this rule for fiscal years 2023 to 2027. From FYs 
2023 to 2027, H-1B and L-1 petitioners will experience a total in 
transfer payments

[[Page 48346]]

of $720.3 million if discounted at three percent and $644.9 million if 
discounted at seven percent. Petitioners will experience total 
annualized transfer payments of $157.3 million under both three and 
seven percent discount rates.

                    Table 4--Undiscounted Projected Transfer Payments From the Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                                   H-1B Projected         L-1 Projected        Total projected
                     Year                           undiscounted          undiscounted          undiscounted
                                                  transfer payments     transfer payments     transfer payments
----------------------------------------------------------------------------------------------------------------
2023..........................................          $129,468,000           $27,823,500          $157,291,500
2024..........................................           129,468,000            27,823,500           157,291,500
2025..........................................           129,468,000            27,823,500           157,291,500
2026..........................................           129,468,000            27,823,500           157,291,500
2027..........................................           129,468,000            27,823,500           157,291,500
                                               -----------------------------------------------------------------
    Total.....................................           647,340,000           139,117,500           786,457,500
----------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.


    Table 5--Total Monetized Present Value and Annualized Additional
                Transfer Payments From the Proposed Rule
------------------------------------------------------------------------
         Fiscal year            3% Discount rate      7% Discount rate
------------------------------------------------------------------------
2023........................          $152,710,194          $147,001,402
2024........................           148,262,324           137,384,488
2025........................           143,944,004           128,396,718
2026........................           139,751,460           119,996,932
2027........................           135,681,030           112,146,666
                             -------------------------------------------
    Total...................           720,349,013           644,926,205
    Net Present Value.......           720,349,013           644,926,205
    Annualized Transfer                157,291,500           157,291,500
     Payments...............
------------------------------------------------------------------------

    With this additional funding CBP will be able to meet its 
congressional mandate to enhance national security by deploying a fully 
integrated biometric entry-exit data system. CBP will be able to 
maintain its current biometric entry and exit operations, as well as 
ensure that TVS continues to be available to CBP and external 
stakeholders. CBP will also be able to continue its expansion to all 
ports of entry in order to fully implement a comprehensive biometric 
exit system at all land, sea, and air exits.\27\
---------------------------------------------------------------------------

    \27\ Since 2004, DHS has worked to develop and implement a 
comprehensive biometric entry and exit data system as required by 
section 7208 of the IRTPA. See, e.g., Implementation of the United 
States Visitor and Immigrant Status Indicator Technology Program 
(``US-VISIT''); Biometric Requirements, 69 FR 468 (Jan. 5, 2004). 
Additional resources discussing DHS's plans to enhance biometric 
operations are DHS's annual Entry/Exit Overstay Reports, available 
at https://www.dhs.gov/publication/entryexit-overstay-report.
---------------------------------------------------------------------------

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.) (RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), requires agencies to assess the impact of regulations on 
small entities. A small entity may be a small business (defined as any 
independently owned and operated business not dominant in its field 
that qualifies as a small business per the Small Business Act); a small 
not-for-profit organization; or a small governmental jurisdiction 
(locality with fewer than 50,000 people).
    As discussed above, this rule will result in transfer payments to 
the U.S. Government from employers with 50 or more employees and more 
than 50 percent of employees in H-1B and/or L-1 nonimmigrant status 
(covered employers). DHS used a random sample of 399 H-1B/L-1 
petitioners provided by USCIS to positively identify 264 small entities 
based on the size standards of the Small Business Administration. Only 
41 of these small entities have more than 50 employees and would be 
subject to the 9-11 Biometric Fee. The rule also states that the 9-11 
Biometric Fee is applicable only to entities with more than 50 percent 
of employees in H-1B or L-1 status. DHS does not have enough 
information to determine how many employers fit this description. 
Therefore, DHS is unable to determine whether this rule affects a 
substantial number of small businesses. However, DHS can estimate that 
an approximate maximum of 16 percent of small businesses will be 
affected by this rule.\28\
---------------------------------------------------------------------------

    \28\ 41 out of 264 confirmed small entities sampled (41/264 = 
.1553 or 15.53%).
---------------------------------------------------------------------------

    Petitioning employers with 50 or more employees and more than 50 
percent of employees in H-1B or L-1 status will pay the 9-11 Biometric 
Fee. The fee for H-1B and L-1 petitions under Public Law 114-113 is 
$4,000 and $4,500, respectively. DHS does not have enough information 
on the number of times a petitioning employer would pay the 9-11 
Biometric Fee due to the rule change to determine whether this rule has 
a significant impact on small businesses.
    Although DHS was able to estimate effects of the rule and create a 
rough estimate of the number of small businesses affected by the rule, 
DHS was unable to determine how many employers have more than 50 
percent of its employees in the United States in H-1B or L-1 
nonimmigrant status, or the number of times that an individual employer 
would be subject to the 9-11 Biometric Fee due to a lack of detailed 
petition data available on filings. Therefore, DHS seeks public comment 
on the number of small companies that would be subject to this fee and 
how often small companies would pay the 9-11 Biometric Fee. DHS has 
conducted the following Initial Regulatory Flexibility Analysis.
1. A Description of the Reasons Why Action by the Agency Is Being 
Considered
    DHS is proposing to amend regulations to implement an

[[Page 48347]]

interpretation of the statutory language in Public Law 114-113 that DHS 
now believes would better align with congressional intent by expanding 
the instances in which the 9-11 Biometric Fee would apply. DHS believes 
this interpretation and the consequent increased collections would 
better enable DHS to comply with its congressional mandate under 
section 7208 of the IRTPA to implement and maintain biometric entry and 
exit data.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The 9-11 Biometric Fee is authorized under Div. O, section 402(g) 
of the Consolidated Appropriations Act, 2016, Public Law 114-113, 129 
Stat. 2242, 3006. This statute set aside 50 percent of the funds that 
come from the 9-11 Biometric Fee (up to a total of $1 billion) to be 
deposited into a 9-11 Biometric Account. The funds from the 9-11 
Biometric Account are available to support the congressionally mandated 
biometric entry-exit data system, as described under section 7208 of 
the IRTPA. Annual maintenance costs for those biometric entry and exit 
data systems that CBP has already implemented currently exceed the 
annual funding received through the 9-11 Biometric Fee. These funds are 
insufficient to finish implementing the biometric entry operations to 
additional sea and land modalities or to implement a comprehensive 
biometric exit system. DHS believes this proposed rule will increase 
collections and provide adequate funding to better allow CBP to meet 
Congress's biometric programs mandate and would better align with 
congressional intent.
3. A Description and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Will Apply
    The proposed rule could potentially affect small, covered employers 
across a wide range of industries. CBP used a random sample of 399 H-1B 
and L-1 petitioners in 2020 to estimate the number of small entities 
affected by this rule. Table 6 shows the distribution of entities 
across the sample provided by USCIS. From this sample, six entities 
listed an invalid North American Industry Classification System (NAICS) 
code and 68 did not report a NAICS code, and so CBP cannot make a 
determination on the size of the entity or the impact this rule will 
have on them. Of the remaining 325 entities in the sample, CBP was able 
to positively identify 264 as small entities based on size standards of 
the Small Business Administration. Table 6 shows the distribution of 
small entities across industries.

             Table 6--NAICS Codes, Descriptions, Number, and Percent of Industry in Sample Are Small
----------------------------------------------------------------------------------------------------------------
                                                               Number of small     Number of       Percent of
       Primary NAICS code            Industry description        entities in      entities in      industry in
                                                                   sample           sample      sample are small
----------------------------------------------------------------------------------------------------------------
511210..........................  Software Publishers.......                18              19                95
541511..........................  Custom Computer                           17              17               100
                                   Programming Services.
561439..........................  Other Business Service                    14              15                93
                                   Centers (including Copy
                                   Shops).
541618..........................  Other Management                          11              13                85
                                   Consulting Services.
541330..........................  Engineering Services......                 9               9               100
621111..........................  Offices of Physicians                      9               9               100
                                   (except Mental Health
                                   Specialists).
611110..........................  Elementary and Secondary                   7               7               100
                                   Schools.
541211..........................  Offices of Certified                       7               7               100
                                   Public Accountants.
621493..........................  Freestanding Ambulatory                    6               6               100
                                   Surgical and Emergency
                                   Centers.
561110..........................  Office Administrative                      5               5               100
                                   Services.
541512..........................  Computer Systems Design                    4               4               100
                                   Services.
423610..........................  Electrical Apparatus and                   4               4               100
                                   Equipment, Wiring
                                   Supplies, and Related
                                   Equipment Merchant
                                   Wholesalers.
541110..........................  Offices of Lawyers........                 4               6                67
446110..........................  Pharmacies and Drug Stores                 4               4               100
523930..........................  Investment Advice.........                 4               4               100
621210..........................  Offices of Dentists.......                 4               4               100
611310..........................  Colleges, Universities,                    3               4                75
                                   and Professional Schools.
541714..........................  Research and Technology in                 3               3               100
                                   Biotechnology (except
                                   Nanobiotechnology).
541611..........................  Administrative Management                  3               4                75
                                   and General Management
                                   Consulting Services.
518210..........................  Data Processing, Hosting,                  3               3               100
                                   and Related Services.
541690..........................  Other Scientific and                       3               6                50
                                   Technical Consulting
                                   Services.
621399..........................  Offices of All Other                       3               3               100
                                   Miscellaneous Health
                                   Practitioners.
541720..........................  Research and Development                   3               3               100
                                   in the Social Sciences
                                   and Humanities.
238210..........................  Electrical Contractors and                 3               3               100
                                   Other Wiring Installation
                                   Contractors.
488390..........................  Other Support Activities                   3               3               100
                                   for Water Transportation.
541519..........................  Other Computer Related                     3               3               100
                                   Services.
921120..........................  Legislative Bodies........                 3               3               100
Other...........................  Various *.................               104             154                68
                                                             ---------------------------------------------------
    Total.......................  ..........................               264             325                81
----------------------------------------------------------------------------------------------------------------
* Two or fewer small entities in NAICS category.

    Of the 264 confirmed small entities, 223 had fewer than 50 
employees and would be statutorily exempt from paying the 9-11 
Biometric Fee and 40 small entities had 50 or more employees. CBP did 
not have an employee count for one employer and cannot determine 
whether it is affected by this rule.

[[Page 48348]]

    Based on the sample and the 50/50 threshold,\29\ CBP estimates that 
an approximate maximum of 16 percent of small entities that hire H-1B 
or L-1 employees will be affected by this rule.\30\
---------------------------------------------------------------------------

    \29\ ``50/50 threshold'' refers to the threshold for employers 
to be subject to the requirements of the 9-11 Biometric Fee. 
Employers with 50 or more employees and more than 50 percent of 
employees in H-1B or L-1 status will be subject to the Biometric Fee 
for certain H-1B and L-1 submissions.
    \30\ 41 out of 264 confirmed small entities sampled (41/264 = 
.1553 or 15.53%).
---------------------------------------------------------------------------

4. A Description of the Projected Reporting, Recordkeeping and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for Preparation of the 
Report or Record
    The proposed regulation does not propose changes to any required 
reporting or recordkeeping. As discussed above, this rule could affect 
any small entity that employs 50 or more people with more than 50 
percent of employees in H-1B or L-1 nonimmigrant status.
    The proposed rule would have compliance requirements for affected 
small businesses since it would amend the regulations at 8 CFR 
106.2(c)(8) and (9) to specify that the 9-11 Biometric Fee will apply 
to all H-1B and L-1 extension-of-stay petitions in addition to all 
previously covered H-1B and L-1 petition. As a result, petitioning 
small businesses with 50 or more employees and more than 50 percent of 
employees in H-1B or L-1 status affected by the proposed rule would pay 
the 9-11 Biometric Fee. The fee for H-1B and L-1 petitions under Public 
Law 114-113 is $4,000 and $4,500, respectively.
5. Identification, to the Extent Practicable, of All Relevant Federal 
Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule
    This proposed rule does not duplicate, overlap, or conflict with 
any Federal rules.
6. A Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    Alternative 1 (chosen alternative): Adopt an alternative statutory 
interpretation to require covered employers to pay the 9-11 Biometric 
Fee for I-129 Form petitions, seeking initial grants of status as well 
as all extension-of-stay petitions, regardless of whether there is a 
change of employer.
    Alternative 2: No regulatory action.
    DHS has chosen to implement Alternative 1. DHS believes that the 
alternative statutory interpretation of Public Law 114-113 minimizes 
the impact on small businesses, because only entities with 50 or more 
employees and more than 50 percent of employees in H-1B or L-1 status 
must pay the 9-11 Biometric Fee, while still allowing DHS to receive 
enough funds for the required maintenance of biometric entry and exit 
data systems already in place. While Alternative 2 would have a smaller 
impact on small businesses, it would leave DHS unable to accomplish the 
stated objectives of the applicable statutes. Therefore, DHS believes 
Alternative 1 best balances funding requirements and provides the 
smallest possible impact on small businesses while doing so.
    Alternative 2 would mean that the status quo would continue and DHS 
would lack sufficient funding for the implementation and maintenance of 
a congressionally mandated biometric entry-exit system because covered 
employers would not need to pay the 9-11 Biometric Fee for extensions. 
This alternative would require DHS to reallocate funds marked for other 
purposes in order to maintain and finish implementing current biometric 
entry operations and implement biometric exit operations, as required 
by section 7208 of the IRTPA.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) 
requires that DHS consider the impact of paperwork and other 
information collection burdens imposed on the public. An agency may not 
conduct, and a person is not required to respond to, a collection of 
information unless the collection of information displays a valid 
control number assigned by OMB. Form I-129 is covered by OMB approved 
collection 1615-0009. This rule makes no changes to this information 
collection, so the provisions of the PRA do not apply to this rule.

List of Subjects in 8 CFR 106

    Citizenship and naturalization, Fees, Immigration.

Proposed Regulatory Amendments

    For the reasons stated in the preamble, DHS proposes to amend part 
106 of title 8, Code of Federal Regulations (8 CFR part 106), as 
follows:

PART 106--USCIS FEE SCHEDULE

0
1. The authority citation for part 106 is revised to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356;48 
U.S.C. 1806; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 101 note); 
Pub. L. 115-218, 132 Stat. 1547; Pub. L. 116-159, 134 Stat. 709.

0
2. Amend Sec.  106.2 by revising paragraphs (c)(8) and (c)(9) to read 
as follows:


Sec.  106.2   Fees.

* * * * *
    (c) * * *
    (8) 9-11 Response and Biometric Entry-Exit Fee for H-1B Visa. For 
all petitioners filing an H-1B petition who employ 50 or more employees 
in the United States, if more than 50 percent of the petitioner's 
employees in the aggregate are in H-1B, L-1A, or L-1B nonimmigrant 
status, except for petitioners filing an amended petition without an 
extension of stay request: $4,000. This fee will apply to petitions 
filed on or before September 30, 2027.
    (9) 9-11 Response and Biometric Entry-Exit Fee for L-1 Visa. For 
all petitioners filing an L-1 petition who employ 50 or more employees 
in the United States, if more than 50 percent of the petitioner's 
employees in the aggregate are in H-1B, L-1A, or L-1B nonimmigrant 
status, except for petitioners filing an amended petition without an 
extension of stay request: $4,500. This fee will apply to petitions 
filed on or before September 30, 2027.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-12396 Filed 6-5-24; 8:45 am]
BILLING CODE 9111-14-P